The methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

From Scott Brooksby’s article in the American Bar Association’s Mass Torts Practice Points on January 29, 2016:

The Uphill Climb to Establish General Personal Jurisdiction over a Foreign Corporate Defendant

On December 30, 2015, the U.S. District Court for the Northern District of Illinois granted the French company Airbus S.A.S.’s Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. Siswanto, et. al. v. Airbus S.A.S., 2015 WL 9489952. The case was brought under the Multiparty Multiforum Trial Jurisdiction Act of 2002 (MMTJA). The court reasoned that because the case was brought under the MMTJA, Fed. R. Civ. P. 4(k)(l)(C) and the MMTJA enabled the court to consider Airbus’s contacts with the United States as a whole, and not just the state of Illinois. However, nothing in the statutes overrode Airbus’s constitutional due-process protections governing the court’s exercise of personal jurisdiction. Siswanto serves as fresh instruction on the vigorous scrutiny that courts apply to determine the existence of general personal jurisdiction over a foreign defendant.

The case arose from a December 28, 2014, crash of Air Asia Flight No. 8501, an Airbus A320-216 flying from Indonesia to Singapore. The heirs and personal representatives of the deceased brought product-liability and negligence claims against several defendants, including Airbus.

There was no dispute that Airbus was incorporated and had its principal place of business in France. For at least the previous five years, Airbus had not maintained any offices or employees in the U.S. or owned or rented property in the U.S. All manufacturing on the aircraft occurred in Europe, and none of Airbus’s subsidiaries in the U.S. undertook this work. The A320-216 had been issued a Type Certificate by the European Safety Agency but not the Federal Aviation Administration. The aircraft was sold to Air Asia Berhad, a Malaysian airline carrier that did not operate in the United States and the aircraft had never been flown in the United States.

Airbus moved to dismiss for lack of minimum contacts under the Fifth Amendment Due Process Clause. The plaintiffs proceeded only under a theory of general personal jurisdiction arising from Airbus’s extensive contacts with the United States as a whole. The court noted that the traditional “minimum contacts” test from International Shoe still governs even when the basis of personal jurisdiction involves a statute providing for nationwide service of process. KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 723, 730–31 (7th Cir. 2013) (citations omitted). The KM Enterprises court reasoned that when a federal statute authorizes nationwide service of process, the scope of the minimum-contacts test exceeds the forum state’s long-arm statute, and requires “continuous and systematic general business contact” such that Airbus is “essentially at home in the forum, the U.S., not just the State of Illinois.” See alsoAbelesz v. OTP Bank, 692 F.3d 638, 654, 656 (7th Cir. 2012) (citations omitted).

Against these demanding requirements for general personal jurisdiction, the plaintiffs argued that four categories of contacts between Airbus and the United States warranted the court’s exercise of general personal jurisdiction, all of which the court rejected.

First, the plaintiffs argued that Airbus’ sale of 811 aircraft—6.73 percent of its global sales in the last 10 years—were to U.S. based customers. The court noted that “imputing general personal jurisdiction from a defendant’s sales in the forum, even if sizable, would stretch general personal jurisdiction beyond its reach.” Siswanto, 2015 WL 9489952, at *4.

Second, the plaintiffs argued that 42 percent of Airbus’s procurement was in the United States. The court reasoned that mere purchases, “even if occurring at regular intervals,” do not establish general personal jurisdiction when the underlying cause of action is not related to those purchases. Id. (citing Helicopteros Nacionales de Columbia, S.A. v Hall, 466 U.S. 407 (1984)).

Third, the plaintiffs attempted to impute the contacts from Airbus’s “separately incorporated” subsidiaries, by arguing that the subsidiaries maintain a physical presence in the United States and provide thousands of jobs. The court rejected this argument based on the general rule that the jurisdictional contacts of a subsidiary are not imputed to the parent. Id.

Fourth, the plaintiffs cited a 2006 Associated Press Article showing that the FAA certified another aircraft model, the Airbus A380. The court noted that this isolated fact had no special significance as far as personal jurisdiction was concerned.

Siswanto emphasizes that while Airbus’s contacts with the United States may have been extensive, the contacts advanced by the plaintiffs fell far short of showing the de facto relocation requirement by the Supreme Court for a foreign corporate defendant to satisfy general personal jurisdiction.

Scott Brooksby will join other distinguished faculty at this prominent aviation conference, which will highlight current developments in aviation law including:

• Birds, pets, lasers, stowaways, and other hot topics
• Recent developments in case law in aviation and space law
• Defenses available in war zone tort actions
• Ethics—The preparation and testimony of witnesses during an aviation trial
• Improving aviation safety
• Defining the boundaries of federal preemption in aviation litigation
• Handling Air Traffic Control issues and aviation mishaps in air crash cases
• Carrier liability surrounding the failure to divert due to medical circumstances
• Liability issues surrounding foreign maintenance of American aircraft

Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience. Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters. Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court. The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths. Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section, and serves as a speaker on aviation matters at aviation law conferences across the nation.

Congratulations to Scott Brooksby for being honored as a 2015 Oregon Super Lawyer for product liability defense! Scott has been named as a Super Lawyer every year since 2008. No more than five percent of the lawyers in Oregon are selected for this honor.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts. He has experience in lengthy product liability trials, including the defense of a large aviation product manufacturer in a months-long trial. He has also resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in case dismissals or other favorable results. Scott has experience counseling product liability clients regarding the avoidance of litigation and unwanted governmental intervention.

Scott has litigated and tried catastrophic injury cases, particularly those involving allegedly defective products. He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities. In the area of product liability, Scott has exceptional knowledge and experience in transportation industry accidents, aviation crash litigation, component part product liability law, and drug and medical device cases.

Olson Brooksby has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers. Our trial lawyers know how to effectively settle and try product liability cases and how to minimize risk and avoid future claims.

Scott Brooksby has experience handling and working with a wide variety of product liability experts regarding complicated factual and medical issues. The law firm of Olson Brooksby is familiar with federal and state product liability law and regulations, and work with our clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Olson Brooksby frequently counsels local and national clients on whether or not the consumer products they manufacture or sell contain a safety defect that they would be required to report to the Consumer Product Safety Commission.

Federal Regulation

The Congress of the United States established the Consumer Product Safety Act (“CPSA”), codified at 15 U.S.C. §§2007-2089.

Complete analysis of the CPSA is beyond the scope of this article. Pursuant to the CPSA, Congress established the Consumer Product Safety Commission (“Commission”) to regulate consumer product safety in the United States. Under the CPSA, the Commission has the power to develop regulations related to the safety of consumer products, which are generally contained in the Code of Federal Regulations.

Under 15 USCS § 2052(5), a “consumer product” means “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise…”

Specifically excluded from regulation by the CPSC are tobacco, motor vehicles, pesticides, aircraft and aircraft components, boats, drugs and medical devices and food. Even if these excluded products are purchased for consumer use, they are not subject to regulation or jurisdiction by the CPSC. The Commission does tend to heavily regulate consumer products, especially children’s items, such as: car seats, children’s pajamas, strollers, cribs, toys, some recreational products, certain home appliances, and tools. The CPSC has passed specific regulatory acts such as the “Children’s Flammable Pajamas Act” associated with consumer products that target vulnerable users, primarily children and vulnerable adults. A link to the CPSC website, which contains useful product safety information, including information for manufacturers such as current product recalls, is found at http://www.cpsc.gov/.

The Requirement of Reporting Consumer Product Defects to the CPSC

Although complete analysis of reporting requirements are beyond the scope of this article, Section 15(b) of the CPSA establishes reporting requirements (“Section 15(b) reports”) for manufacturers, importers, distributors and retailers of consumer products. In summary, each must notify the commission (generally within 24 hours) if they obtain information that “reasonably supports the conclusion” that a product (1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard, (2) fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the Commission such as the Children’s Gasoline Burn Prevention Act, Refrigerator Safety Act or Flammable Fabrics Act, (3) contains a defect which could create a substantial product hazard, or (4) creates an unreasonable risk of serious injury or death.

Under the CPSA, a private right of action exists for any person injured by violation of a consumer product safety rule promulgated by the Commission. Manufacturers should be aware that the CPSA contains some sharp teeth and courts may award attorney fees as part of the injured person’s recovery. 15 U.S.C. §2072. Under the CPSA, the CPSC has broad enforcement powers and a number of tools to ensure the safety of consumer products. However, under the CPSA, the CPSC is also charged with assisting manufacturers, distributors and retailers of products with known defects in the development of a “Corrective Action Plan” (“CAP”), and although the CPSC enforcement powers have sharp teeth, the CPSC is also focused on working to develop voluntary corrective action plans and engaging in cooperation during corrective action plan implementation.

Olson Brooksby frequently counsels manufacturers on whether to pass along reports they have received or internally-developed information that suggests that a product may contain a defect that would require reporting under Section 15(b) of the CPSA. While comprehensive analysis of the Section 15(b) reporting requirements are beyond the scope of this article, the Commission has published a useful abbreviated publication that discusses reporting and product recalls.

Although it should go without saying, manufacturers, especially those focused on products for babies, children and household consumers (such as cleaning products, flammable products, etc.), must be aware of whether the Commission is considering or has established specific rules governing their products. Manufacturers, distributors and retailers should be aware of the basic reporting requirements to the CPSC under Section 15(b) if they become aware of information that reasonably supports the conclusion that their product contains a defect and should voluntarily report.

The Commission has the power to require mandatory recalls, but will typically offer a manufacturer the option of conducting a voluntary recall before issuing a recall order. Prudent manufacturers of consumer products, especially those for which the Commission has promulgated specific rules or standards, should have a recall plan developed in advance because, whether voluntary or mandatory, the Commission will expect the company to commence the necessary recall action plan quickly and such plans are typically very involved. Any action taken by the Commission, whether in the form of corrective action or a recall can have serious consequences for manufacturing cycles and the costs associated with a recall can be very high. For more on this issue, please feel free to contact our office.